Health Direct has learned that payments to top up NHS care – supposedly banned – are happening at 30 hospitals across the UK.

Professor Mike Richards, the cancer tsar for England, has been holding a review about so called co-payments and will report at the end of this month. The issue is also under review in Wales and Scotland.

But patients are already topping up their NHS care, as hospitals find ways around the current rules.

The current rules say you cannot mix and match between the NHS and private.

You are either all NHS and it is free or you’re all private and you pay for everything.

But the details are interesting. The code of practice says a patient cannot be both an NHS patient and private in the same episode of care.

So in Birmingham they have found a way round the ban on top ups.

Separately another consultant at the same hospital writes a private prescription for the drugs that patients wants to keep them alive.

They are supplied at patients’ homes by a private company called Healthcare at Home.

They pay the company direct. So the administration of the drugs is viewed as a separate episode of care.

Professor Nick James is the oncologist in Birmingham who designed this model of allowing patients to top up their care.

“Nowhere does it say that an episode of care is from diagnosis to death of your cancer” he said. “So we’ve just interpreted the rules in a way which is in favour of the patients.”

Across the country

What is remarkable is that topping up, something the labour government says is banned, is not just happening in Birmingham.

The company which provides the drugs to Ian says they have contracts with 30 NHS hospitals across the country.

Mike Gordon, chief executive of Healthcare at Home, said: “Top ups are happening today and they’ll happen tomorrow. So long as they’re done through us not using the auspices of the NHS I see no reason why they shouldn’t continue.”

A Department of Health spokesperson said: “We know there is variation in how individual Trusts are applying the current guidance, and that is why the Secretary of State asked Professor Mike Richards, National Clinical Director for Cancer, to lead a review into this difficult issue.

“Professor Richards is looking at how a consistent approach across the country might be best achieved.”

Shadow Health Secretary Andrew Lansley said: “David Cameron and I have pressed the Health Secretary, Alan Johnson, to enter into a risk sharing scheme for the kidney cancer drug Sutent in order that patients will be able to access this life saving treatment immediately, but nothing has been done.”

Norman Lamb, for the Liberal Democrats, said: “We are in an outrageous situation where patients are left in a lottery, dependent on a few hospitals which are bending the rules.